FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63987/00 by Hans-Olof EKELUND against Sweden

The European Court of Human Rights (Fourth Section) , sitting on 25 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 6 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. Hans-Olof Ekelund, is a Swedish national, who was born in 1948 and lives in Höllviken, Sweden.

The facts of the case, as submitted by the applicant , may be summarised as follows.

It appears that the applicant was detained on remand for two days between 3 and 5 December 1997. He was later charged with aggravated fraud ( grovt bedrägeri ) and complicity in aggravated fraudulent behaviour towards creditors ( grov oredlighet mot borgenärer ). The indictment was brought by the chief prosecutor at the Economic Crimes Bureau ( ekobrottsmyndigheten ) in Malmö.

The District Court ( tingsrätten ) of Malmö heard the case, which also involved charges against two co-accused, during 13 days between 15 January and 16 February 1998. The court heard 15 witnesses and the parties submitted a considerable amount of written evidence. In hearing the case, the District Court was composed of one professional judge and four lay assessors ( nämndemän ).

Delivery of judgment was delayed on several occasions due to illness or a heavy workload. Eventually, by a judgment of 5 May 1998, the District Court found the applicant guilty of attempted aggravated fraud and complicity in aggravated fraudulent behaviour towards creditors and sentenced him to one and a half year’s imprisonment. However, the prosecutor’s request that the applicant be prohibited from running a consulting business ( förbud att bedriva rådgivningsverksamhet ) was rejected.

Upon appeal, the Court of Appeal ( hovrätten ) of Skåne and Blekinge heard the case during 12 days between 1 and 29 March 1999. On the first day of the hearing, the applicant joined the objection made by one of the co-accused that the hearing should be suspended as a person suspected of complicity in the crimes in question was absent and thus could not be heard by the Court of Appeal. By a decision of the same day, the appellate court decided that the absence of this person did not constitute an obstacle to the continuation of the hearing. It took into account that there had been no contact with this person for a long time and that, despite the efforts to find him, his whereabouts were still unknown. It considered therefore that there was no reason to believe that he would be found in the foreseeable future.

On 23 April 1999 the Court of Appeal rendered its judgment. It upheld the conviction for aggravated fraudulent behaviour towards creditors but acquitted the applicant of the charge of aggravated fraud. The prison sentence remained unchanged. Moreover, the Court of Appeal decided to prohibit the applicant from running a consulting business for three years. It had regard to the oral and written evidence presented to it and did not base any part of its assessment on statements made by the person who could not be heard during the hearing.

On 3 January 2000 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

The criminal proceedings against the applicant and the co-accused attracted interest from the media, and the public prosecutor and the applicant’s lawyer made statements to the press in regard to the proceedings.

As from October 1998 a criminal investigation, lead by the Public Prosecutor’s Office in Helsingborg, was carried out concerning the District Court judge who had presided in the applicant’s case. Due to the investigation, the judge was suspended from his work in February 1999. He later resigned from his duties at the District Court. On 7 June 1999 the District Court of Lund convicted him of breach of trust ( trolöshet mot huvudman ), consisting of embezzlement of assets belonging to his aunt during the period of November 1995 – May 1998. He was given a suspended sentence.

The applicant subsequently filed complaints with the police and the Chancellor of Justice ( Justitiekanslern ), claiming that the District Court judge should not have dealt with his case since the judge had been involved in criminal activities. In the applicant’s view, this had affected his trial by, for instance, delaying the delivery of the District Court judgment. By decisions of 3 and 23 September 1999, respectively, neither the Chancellor of Justice nor the Prosecutor-General ( Riksåklagaren ) found reason to take action in the matter.

COMPLAINTS

1. The applicant complained that his detention in December 1997 constituted degrading treatment. He relied on Articles 3 and 5 of the Convention.

2. Furthermore, the applicant made several complaints under Article 6 of the Convention. He claimed, inter alia , that the he did not have a fair trial by an independent and impartial tribunal, that he was not presumed innocent, that he did not have adequate time and facilities for the preparation of his defence and that he was not allowed to examine a witness.

3. Finally, the applicant complained under Article 2 of Protocol No. 7 to the Convention that he did not have a review of his conviction since the Supreme Court refused him leave to appeal.

THE LAW

1. The applicant complained about his detention under Articles 3 and 5 of the Convention.

However, the Court is not required to decide whether or not the facts pertaining to this part of the application disclose any appearance of a violation of the provisions relied on, as Article 35 § 1 of the Convention provides that “[t]he Court may only deal with the matter after all domestic remedies have been exhausted [...] and within a period of six months from the date on which the final decision was taken”.

In the present case, the Court observes that the applicant was detained on remand between 3 and 5 December 1997 and that he has not given any indication that an appeal was made against the decision to detain him. The present application was lodged on 6 May 2000. Thus, leaving aside the question of exhaustion of domestic remedies, the Court notes that the application was lodged more than six months after the event complained of.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

2. The applicant made several complaints under Article 6 of the Convention, which in relevant parts provides the following:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The applicant claimed firstly that the District Court was not independent and impartial as the presiding judge was involved in criminal activities investigated by the police and the public prosecutor and therefore cannot be considered to have been independent of the prosecutor in the applicant’s case. He also complained that the lay assessors in the District Court had been appointed on a political basis.

The Court notes that no evidence has been submitted which suggests that the members of the District Court held any personal prejudice or bias against the applicant. It is true that a court must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. In this connection, the Court observes that the criminal proceedings against the District Court judge were initiated after the delivery of that court’s judgment and that the judge was convicted after the Court of Appeal proceedings against the applicant had ended. Furthermore, the charges against the judge concerned his embezzlement of his aunt’s assets and had no correlation with the criminal proceedings against the applicant. In the light of these circumstances, the Court considers that the appearance of the District Court judge did not give reason to call into question his independence and impartiality and that, thus, the applicant’s fears in this respect were not objectively justified.

With respect to the lay assessors in the District Court, the Court reiterates that it is not its task to make a general review of, for instance, the compatibility with the Convention of the system of political election of lay assessors. Noting that there is no indication that the applicant challenged the independence and impartiality of the lay assessors in the domestic proceedings, the Court further observes that the proceedings against the applicant had no political connotations and that, moreover, it has not been shown that the lay assessors in question did not meet the requirements of independence and impartiality when assessing the applicant’s case.

The applicant also complained that a key witness was not heard by the Court of Appeal. In his view, the appellate court should have suspended its hearing to enable the relevant authorities to find that witness.

In this respect, the Court reiterates that the right to hear a witness is not absolute (see, among other authorities, Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, § 91).

As to the present case, the Court notes that the request for the hearing of the witness in question was not made before the District Court. The Court of Appeal rejected the request having regard to the fact that the witness had been missing for some time and that unsuccessful efforts had been made to find him. It found that it was not likely that he would appear in the foreseeable future. The Court finds no reason to question the conclusion drawn by the appellate court. Moreover, the domestic courts heard a large number of witnesses and examined a considerable amount of written evidence submitted by the parties. In convicting the applicant, their assessments were not based on any statements made previously by the missing witness. In these circumstances, the Court cannot find that the appellate court’s decision to continue the hearing and determine the case without having heard the witness in question reveals any appearance of a violation of Article 6 of the Convention.

The applicant made further complaints under Article 6 of the Convention. He claimed, inter alia , that his trial had been unfair as the District Court judge had had his mind on the criminal investigation directed against himself, that the District Court’s delay in delivering its judgment was unreasonable, that he had not been presumed innocent, that he had not been given adequate time to prepare his defence, that he had been wrongly convicted and that the public prosecutor’s statements in the media were inappropriate.

However, having examined these complaints, the Court finds that they do not disclose any appearance of a violation of the provision relied on.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant complained under Article 2 of Protocol No. 7 to the Convention that he did not have a review of his conviction since the Supreme Court refused him leave to appeal.

The Court reiterates that Article 2 of Protocol No. 7 to the Convention affords a right to a review of a conviction or sentence by a higher tribunal; it does not, however, guarantee a determination by a third instance. In the present case, the applicant’s conviction and sentence by the District Court was reviewed upon appeal by the Court of Appeal. In these circumstances, the Supreme Court’s refusal of leave to appeal did not involve any violation of the provision invoked by the applicant.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President